B.C. Mitra, J. - (1.) By an order dated December 16, 1963, the Government of West Bengal (Respondent No. 5) referred to the First Industrial Tribunal, West Bengal, under Sec. 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), for adjudication an industrial dispute between the Jay Engineering Works Ltd., 183A, Prince Anwar Shah Road, Dhakuria, Calcutta -31 and the Jay Engineering Works Ltd., Roynagar, Bansdroni, P.O. Naktala, Dist. 24 -Parganas, on the one hand and their workmen represented by two unions, namely, Jay Engineering Workers' Union, 392, Prince Anwar Shah Road, Calcutta -31 and Jay Engineering Employees Union, 35B, Nirmal Chandra Street, Calcutta -13, on the other hand. Several issues were framed for such adjudication and these issues were as follows: (1) Profit sharing bonus for 1962 -63. (2) Gratuity. (3) Ad -hoc increase in wages. (4) Dearness Allowance to Sales Staff. (5) Standardisation of production earnings. (6) Whether wages on production to be paid for overtime work. The Petitioner (a company incorporated under the Indian Companies Act), filed its written statement before the Tribunal and so did the two workers' unions mentioned above. Thereafter the Presiding Officer of the Tribunal, Mr. Renupada Mukherjee, retired. On such retirement, the Respondent No. 5, by an order dated July 24, 1965, in exercise of its powers under Sec. 33B of the Act, withdrew the reference from the First Industrial Tribunal and transferred the same to the Second Industrial Tribunal (the Respondent No. 1 herein). The Respondent No. 1 tried a preliminary issue on the scope and ambit of the reference. Oral evidence was adduced on behalf of the Petitioner and the Respondents Nos. 3 and 4.
(2.) By an order dated October 30, 1965, the Respondent No. 1 held that the Petitioner's head office, factories, sales zonal offices, training schools and all other places where the Petitioner employed persons, constituted one single establishment and that all the employees of the Petitioner at all the said places were covered by the said order of reference. It was further held that the said issues Nos. 1, 2 and 3 cover the claim of zonal sales office and sales organisations as a whole and any award that would be made, would cover the employees thereof. Issue No. 4, it was held, related to the employee's of sales staff as a whole, including the employees of the zonal sales office and the sales organisation supervised by it. Regarding issues Nos. 5 and 6 it was held, that there was no controversy. The Petitioner feeling aggrieved by this award on the preliminary issue, moved a writ petition and obtained a rule nisi for appropriate writs and orders for quashing or setting aside the said award, prohibiting the Respondents from continuing the proceedings on the said order or reference and also directing the Respondent No. 1 and Respondent No. 5 to forbear from giving any effect to the said order of reference.
(3.) Mr. Subimal G. Roy, Learned Counsel for the Petitioner, raised four points in support of this rule. These points are: (i) The order dated July 24, 1965, whereby the Respondent No. 5 withdrew the reference from the First Industrial Tribunal and transferred the same to the Respondent No. 1 is illegal and void. This order could not be made under Sec. 33B of the Act as the vacancy was caused by the retirement of the Presiding Officer. This vacancy should have been filled up under Sec. 8 of the Act which clearly provided for filling up of vacancies. (ii) By holding that all the different places of business of the Petitioner formed one establishment and the order of reference covered all the workmen at the different establishments of the Petitioner, the Respondent No. 1 acted in excess of its jurisdiction, as the order of reference clearly and categorically specified that the dispute referred to was a dispute between the Jay Engineering Works Ltd., 183A, Prince Anwar Shah Road, Dhakuria and the Jay Engineering Works Ltd., Roynagar, Bansdroni, Naktala and their workmen. The dispute referred to, therefore, was limited to the dispute between the two definite establishments of the Petitioner and the workmen employed in these establishments. Respondent No. 1 was bound by the terms of reference and had acted in excess of its jurisdiction, by holding that an award made by it on the issues mentioned in the order of reference would cover all the employees at the different establishments of the Petitioner, (iii) The order made by the Respondent No. 1 on October 30, 1965 is bad and illegal as it is beyond the terms of the reference. (iv) The order of reference is bad as several issues have been framed some of which were the subject -matter of a settlement between the Petitioner and its employees, which was arrived at on September 25, 1959 and which was incorporated in an award. The employees of the Petitioner were represented by the National Union of Mercantile Employees at this settlement. This settlement was still valid and binding on the employees of the Petitioner and therefore, there could be no award on some of the issues framed by the Respondent No. 5 by the order of reference. Issue No. 4 relates to the dearness allowance of sales staff and this particular issue was the subject -matter of the said settlement.;